IN THE CASE OF:	Mr. 

      BOARD DATE:	11 April 2014

      CASE NUMBER:	AR20130013151
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s combat service and the circumstances surrounding the discharge, and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.  The Board determined the reason for discharge was proper and equitable and voted not to change it.  




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests to upgrade the characterization of his service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, he requests the injustice in his record be corrected by upgrading his discharge to honorable due to improper actions by his chain of command and inequitable receipt of a GD.  His discharge is improper because the chain of command initiated an Article 15 and separation based on limited use evidence and an unwarranted search.  It is also inequitable because another Soldier with nearly identical circumstances during the same time frame received an honorable discharge.  In his self-authored statement, in pertinent part and in effect, he adds that he fully cooperated with his chain of command and took responsibility for his actions, although the circumstances surrounding the incident were conducted in violation of law and policies; his characterization was worse than his peer who was involved in the same incident; and he (the applicant) had no other aggravating circumstances.  His chain of command recommended him for an honorable discharge, a reflection of his work ethics, attitude, and the surrounding circumstances.  He served in Afghanistan and learned the importance of service.  He made a terrible mistake as a Soldier and has learned from it.  Since his separation, he volunteers at a church and the YMCA, where he teaches basic computer applications to high school and middle school students, and works with a company that allows him to install automated security systems in homes.  Based on his service to his country; having learned from his mistake; and becoming a stronger person, he would like his service to be characterized as honorable.  That upgrade would enable him to attend college while supporting his family, and apply his warrior ethos and work ethics to continue improving his community.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	16 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	1 August 2012
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	D Btry, 26th FA (Target Acquisition Battery), 3rd Bn, 
			27th FA Regiment (HIMARS), Fort Bragg, NC
	f.	Current Enlistment Date/Term:	29 March 2010, 4 years, 22 weeks
	g.	Current Enlistment Service:	2 years, 4 months, 3 days
	h.	Total Service:	2 years, 4 months, 3 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	13T10, Field Artillery Surveyor/Meteorological 
			Crewmember
	m.	GT Score:	89
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (dates NIF)
	q.	Decorations/Awards:	ARCOM; NDSM; ACM-2CS; GWOTSM; ASR; OSR; 
			NATO MDL 
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 29 March 2010, for a period of 4 years and 22 weeks.  He was 19 years old at the time of entry and a high school graduate.  He served in Afghanistan.  The date of his overseas service is not in the record; however, his AMHRR indicates orders, dated 14 October 2010, that announces his deployment departure date of 4 November 2010, for 365 days.  He earned an ARCOM.  He completed 2 years, 4 months, and 3 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 6 June 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense), specifically for wrongfully possessing spice (120210).

2.  Based on the above misconduct, the unit commander recommended an honorable discharge and advised the applicant of his rights.

3.  On 12 June 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected not to submit a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with an honorable discharge.  

4.  On 22 June 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 1 August 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no counseling statements or UCMJ actions in the record.  However, the applicant was discharged as a PVT/E-1; the action that reduced him in rank is not available in his record.  The commander’s forwarding memorandum, undated, indicates the applicant received a FG Article 15 on 30 March 2012, for wrongfully possessing spice (120210) and the applicant was reduced to E-1, forfeiture of $745 per month for two months, and 45 days of extra duty and restriction.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement; his battery commander’s memorandum for record, dated 11 June 2013; his battery commander’s memorandum notifying him of his separation proceedings, dated 6 June 2012; his battalion and brigade commanders’ recommendations, dated 18 and 19 June 2012, respectively; police department records check, dated 29 May 2013; APFT for April and May 2010; and DD Form 214 for service under current review.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, since his separation, he volunteers at a church and the YMCA, where he teaches basic computer applications to high school and middle school students, and works with a company that allows him to install automated security systems in homes.   

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.   

2.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The record confirms that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the serious incident of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends the discharge was unjust based on impropriety because the chain of command initiated Article 15 and separation actions based on limited use evidence and an unwarranted search--the circumstances surrounding the incident were conducted in violation of law and policies.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  The applicant has not produced sufficient evidence to support the contention that he may have been unjustly discriminated.  In fact, the applicant’s Article 15 action justifies the serious incident of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity.  

5.  Furthermore, the applicant’s supporting statement from the commander who initiated his separation proceedings was carefully considered; however, the commander was not in a position to fully understand or appreciate the expectations of the separation authority’s ultimate decision to issue the applicant a general, under honorable conditions discharge.  As such, the statement does not provide any evidence sufficiently compelling to overcome the presumption of government regularity.  No additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.  

6.  The applicant contends his discharge was inequitable because another Soldier with similar offense or circumstances surrounding the incident that led to his discharge received an honorable discharge.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.  

7.  The applicant contends that because of his work ethics and attitude, and having no other aggravating circumstances during his service, including serving in Afghanistan, his immediate commanders recommended him for an honorable discharge.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the serious incident of misconduct, a documented action under Article 15 of the Uniform Code of Military Justice.

8.  The applicant has expressed his desire to have the benefits of the GI Bill to enable him to attend college while supporting his family.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance

9.  The applicant contends that since leaving the Army, he volunteers at a church and the YMCA, where he teaches basic computer applications to high school and middle school students, and is employed with a company that allows him to install automated security systems in homes.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

10.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

11.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.  
Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the applicant’s combat service and the circumstances surrounding the discharge, and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.  The Board determined the reason for discharge was proper and equitable and voted not to change it.  

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review         Date:  11 April 2014         Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:  				NA









Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR20130013151

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1